1
EXHIBIT 10.3
FORM OF SERVICING AGREEMENT
2
SERVICING AGREEMENT
THIS SERVICING AGREEMENT, dated as of _____________, 199__, between
U.S. Automobile Acceptance Corporation, a Texas corporation, in its capacity as
Contract Servicer ("Servicer") of certain used motor vehicle promissory notes
("Contracts") of U.S. Automobile Acceptance SNP-IV, Inc., a Texas corporation
("Company"), herein enter into this Servicing Agreement as follows.
WITNESSETH:
WHEREAS, it is contemplated that following any purchase of designated
Automobile Finance Contracts (the "Contracts"), the Servicer will assist the
Company to collect the sums due thereon from the Obligors on the Purchased
Contracts so transferred and account to Company therefor as provided herein; and
WHEREAS, Company has requested the Servicer to undertake to assist the
Company with the collection and servicing responsibilities with respect to any
and all of the Contracts;
NOW, THEREFORE, the parties agree as follows:
(1) Appointment of and Acceptance by the Servicer of Servicing
Obligations.
A. The Servicer, on behalf of Company, shall during the term
of this Agreement assist the Company to manage, administer and collect each of
the Contracts and shall exercise discretionary powers involved in such
management, administration and collection, and shall bear all costs and expenses
incurred in connection therewith, that may be necessary or advisable in carrying
out the Agreement. In the management, administration and collection of the
Contracts, the Servicer shall use at least the same care and apply the same
policies that a prudent man would exercise under the circumstances if he owned
the Contracts.
B. The Servicer shall have full power and authority to do
those things in connection with such servicing, administration and collection
activities which it may deem necessary or desirable in order to maximize
receipts collected from Obligors or enforce recourse agreements, and foreclose
and sell vehicles related to defaulted Contracts, if necessary. Without limiting
the generality of the foregoing, the Servicer is hereby authorized and empowered
to execute and deliver, on behalf of Company, instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments. The Servicer shall not commence any legal action against
an Obligor in the name of Company without the prior written consent of Company.
Company shall furnish the Servicer with any powers of attorney and other
documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder.
(2) Term. This Agreement shall commence as of the date first
written above and shall continue so long as the Company has any outstanding
Contracts that remain to be collected, absent an Event of Default.
(3) Compensation. In exchange for the services provided to Company
as described and governed herein, Servicer shall receive before the tenth day of
the month following a month in which such services are provided, a Servicing Fee
equal to twenty-one and 50/100 dollars ($21.50) per month times the aggregate
number of Contracts serviced by Servicer during the previous month. Such
aggregate number of Contracts shall equal the sum of all Contracts identified on
Contracts Schedules to periodically be added as exhibits to this Agreement.
Monthly compensation shall be limited to a maximum of $120,000 in any month. In
addition, the Contract Servicing Fee will be adjusted, if necessary, so that the
total annual Allowed Expenses do not exceed $18,000 in the event only the
Minimum Subscription Amount is sold (as such terms are defined in the Company's
Prospectus). The Servicer's monthly per Contract Servicing fee shall be
increased each year by the pro rata annually published Consumer Price Index
inflation factor.
Additionally, any third-party expenditures pursuant to
collection of defaulted Contracts, repossession and sale of foreclosed vehicle,
and enforcement of recourse agreements shall be paid by the Company as
reimbursement to the Servicer within ten (10) days after receipt of invoice from
Servicer.
1
3
(4) Representations and Warranties of the Servicer. The Servicer
represents and warrants to Company that:
A. Organization and Good Standing. The Servicer is a
corporation duly organized, existing and in good standing under the laws of
Texas, and has full corporate power, authority and legal right to own its
properties and conduct its business as such properties are presently owned and
such business is presently contemplated, and to execute, deliver and perform its
obligations under this Agreement.
B. Due Qualification. The Servicer is duly qualified to do
business in the State of Texas and each other state where such qualification is
required in order to service the Contracts as required by this Agreement and has
obtained all necessary licenses, approvals or consents as are required under
applicable law to perform its duties hereunder.
C. Due Authorization. The execution, delivery and performance
of this Agreement has been duly authorized by the Servicer by all necessary
corporate action on the part of the Servicer.
D. Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Servicer, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereinafter
in effect, affecting the enforcement of creditors' rights in general and such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
E. No Violation. The execution and delivery of this Agreement
by the Servicer, and the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof applicable to the Servicer,
will not conflict with, violate, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a default under, any requirement of law applicable to the Servicer or
any indenture, contract, agreement, mortgage, deed of trust or other instrument
to which the Servicer is a party or by which it is bound.
(5) Covenants of the Servicer. The Servicer covenants that:
A. From and after the date hereof until such time as this
Agreement terminates, Servicer, shall at its own expense, direct all Obligors on
the Contracts and all Subcontract Servicers to remit all collections and
payments directly to, or otherwise cause all payments on the Contracts to be
deposited in, the Company's Master Collection Account. Servicer shall have no
ownership in or authority to amend, modify, change or terminate the Master
Collection Account. Servicer agrees and covenants that it will utilize
remittance instructions directing all payments be remitted directly to the
Master Collection Account, and Servicer additionally agrees that all cash,
checks, notes, drafts or other items which it receives attributable to the
Contracts including proceeds from recourse agreements, from resale of
repossessed Financed Vehicles and recoveries on insurance claims, shall be
deposited in the Master Collection Account within two business days of receipt.
B. Operations. The Servicer shall collect the Contracts in an
orderly and efficient manner consistent with good business practices and in
accordance with all applicable federal, state and local laws and regulations.
C. Records. So long as Company has not given notice of
termination pursuant to Section 9, the Servicer shall (i) if required by Company
hold in trust and safely keep all Purchased Contract Closing Documents and such
other documents as may be required for the enforcement of the Contracts; (ii)
keep such accounts and other records as will enable Company to determine the
status of the Contracts; (iii) keep such books and records at its offices or the
offices of its subcontractors, identified in Section 3 herein; and (iv) permit
Company and its representatives at any time to inspect, audit, check and make
abstracts from Servicer's accounts, records, correspondence and other papers
pertaining to the Contracts. Servicer shall maintain its respective records with
respect to the Contracts in a manner such that the Servicer can produce a
computer file containing a listing (by Obligor) of all Contracts, together with
the account balance of such accounts and the payment history related thereto.
The Servicer shall provide Company with monthly reports updating the information
relating to account balances and activity and certifying the amounts collected
on the Contracts during the preceding month.
2
4
D. Continuation Statements. The Servicer shall execute and
file documents which shall create a first priority security interest in favor of
Company in each Financed Vehicle, including registration of the Certificates of
Title in the name of Company, and/or any other documents requested by Company or
which may be required by law to preserve fully and protect the interest of
Company in and to the Contracts.
E. Principal Executive Office. The Servicer shall not, without
providing thirty days' notice to Company, and without filing such amendments to
any previously filed financing statements as Company may require, (i) change the
county where its principal executive office or the offices where the records
relating to the Contracts are kept, or (ii) change its name, identity or
corporate structure in any manner which would, could or might make any financing
statement or continuation statement filed by Company or the Servicer or any
provision hereof seriously misleading within the meaning any applicable
enactment of the Uniform Commercial Code.
F. No Impairment. The Servicer will duly fulfill all
obligations on its part to be fulfilled under or in connection with each
Contracts and will do nothing to materially impair the rights of Company in the
Contracts.
G. Compliance with Law. The Servicer will comply, in all
material respects, with all acts, rules, regulations, orders, decrees and
directions of any governmental authority applicable to the Contracts or any part
thereof; provided, however, that the Servicer may contest any act regulation,
order, decree or direction in any reasonable manner which shall not materially
and adversely affect the rights of Company in the Contracts. The Servicer will
comply, in all material respects, with any obligation of a holder of a Purchased
Contract to the Obligor thereof arising under such Purchased Contract or under
applicable laws.
H. Security Interest. The Servicer will not sell, pledge,
assign or transfer to any other person, or grant, create, incur, assume or
suffer to exist any lien on any Contracts, or the books or records relating, to
any Contracts, or any interest therein: the Servicer will immediately notify
Company of the existence of any lien on any Contracts: the Servicer shall defend
the right, title and interest of Company in, to and under the Contracts, whether
now existing or hereafter transferred to Company, against all claims of third
parties claiming through or under the Servicer.
(6) Maintenance or Internal Control and Procedures. Servicer
shall, at all times during the term of this Agreement, follow internal control
procedures consistent with loan servicing industry standards and, at the request
of Company, will supply same in written form for review purposes.
(7) Computer. Servicer shall, at all times during the term of this
Agreement, utilize in the operation of its business the industry standard
computer software and contract information maintenance system, such system to be
approved by Company.
(8) Servicer Events or Default. The occurrence and continuation of
any one of the following events shall be a "Servicer Event of Default" under
this Agreement.
A. Failure on the part of the Servicer (i) to immediately
remit collections on the Contracts to the Master Collection Account or (ii)
remit payments to the Company or the Trustee under the Indenture, when due and
continuance of such failure for ten Business Days;
B. An involuntary case is commenced or filed against the
Servicer under the federal bankruptcy laws, as now or hereafter in effect, or
any other present or future federal or state bankruptcy, insolvency or similar
law, or for the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Servicer or of any
substantial part of its property, or for the winding up of the affairs of,
liquidation, dissolution, or reorganization of the Servicer;
C. An order for relief shall be entered in a case under title
11 of the United States Code in which the Servicer is a debtor, or the Servicer
shall become insolvent or admit in writing its inability to pay its debts as
they come due, or the commencement by the Servicer of a voluntary case under the
federal bankruptcy laws, as now or hereafter in effect, or any other present or
future federal or state bankruptcy, insolvency or similar law, or the consent by
the Servicer to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee,
3
5
custodian, sequestrator or other similar official of the Servicer or of any
substantial part of its property or the making by the Servicer of an assignment
for the benefit of creditors or the failure by the Servicer generally to pay its
debts as such debts become due or the taking of corporate action by the Servicer
in furtherance of any of the foregoing; or
D. Failure by Servicer to service and collect amounts due from
Obligors under Contracts and/or to adequately enforce recourse agreements as
required by this Agreement.
(9) Remedies.
A. If a Servicer Event of Default shall have occurred, Company
may, by notice given in writing to the Servicer, terminate all of the rights and
obligations of the Servicer under this Agreement. Notwithstanding any
termination of the rights and obligations of the Servicer, the Servicer shall
remain responsible for any acts or omissions to act by it as Servicer prior to
such termination.
B. Company is hereby authorized and empowered (upon the
failure of the Servicer to cooperate) to execute and deliver, on behalf of the
Servicer as attorney-in-fact or otherwise, all documents and other instruments
upon the failure of the Servicer to execute or deliver such documents or
instruments, and to do and accomplish all other acts or things necessary or
appropriate to effect the purposes of a transfer of servicing rights to a
successor servicer.
C. The Servicer agrees to cooperate with Company and any
successor servicer in effecting the termination of the responsibilities and
rights of the Servicer to conduct servicing hereunder, including, without
limitation, the transfer to such successor servicer of all authority of the
Servicer to service the Contracts provided for under this Agreement, including,
without limitation, all authority over all collections which shall on the date
of transfer be held by the Servicer for deposit or which shall thereafter be
received with respect to the Contracts.
D. The Servicer shall promptly transfer its records relating
to the Contracts to a successor servicer in such form as such successor servicer
may reasonably request and shall promptly transfer to such successor servicer
all other records, correspondence and documents necessary for the continued
servicing of the Contracts in the manner and at such times as the successor
servicer shall reasonably request. To the extent that compliance with this
Section shall require the Servicer to disclose to such successor servicer
information of any kind which the Servicer reasonably deems to be confidential,
such successor servicer shall be required to enter into such customary licensing
and confidentiality agreements as the Servicer shall reasonably deem necessary
to protect its interest.
(10) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns. Upon approval by the Company, the Servicer may contract with
industry-qualified third parties for the performance of any or all of its
obligations arising hereunder but no such contract shall relive Servicer from
liability for its performance hereunder.
(11) Company Event of Default Servicer's Remedies. In the event
that Company should fail to pay any fees or compensation due under this
Agreement, within ten (10) days of the date they are due, or are submitted for
payment, whichever is less, or shall fail to perform any of its duties or to
observe or perform any other term, covenant, condition or agreement provided
within this Agreement, said failure shall constitute an event of default by the
Company. In the event of such default, Purchaser shall have the option of
terminating this Agreement in addition to all remedies available in equity or
law.
(12) Modifications and Waivers. No delay on the part of any party
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver of any right, power or privilege hereunder operate
as a waiver of any other right, power or privilege hereunder, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof, or the exercise of any other right, power
or privilege hereunder. All rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies which the parties hereto may
otherwise have at law or in equity. No waiver shall be valid in the absence of
the written and signed consent of the party against which enforcement of such is
sought.
4
6
(13) Notice. Except as otherwise specifically provided herein, any
notice hereunder shall be in writing (including telegraphic or telecopy
communication) and, if mailed, shall be deemed to be given when sent by
registered or certified mail, postage prepaid, or if telegraphed when delivered
to the telegraph company, or if telecopied when transmitted, or otherwise when
delivered in person to the address and a receipt given for, in all such
instances addressed to the respective party, at such address as the addressee
may, by written notice received by the other party hereto, designate as the
appropriate address for purposes of notice hereunder.
(14) Amendment. This Agreement may be amended, supplemented or
modified only with the written consent of the parties hereto.
(15) Choice of Law. THIS AGREEMENT, AND THE VALIDITY AND
ENFORCEMENT HEREOF, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
SUBSTANTIVE LAWS OF THE STATE OF OKLAHOMA.
(16) Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term of this Agreement, the legality, validity and enforceability of the
remaining provisions of this Agreement shall not be affected thereby, and in
lieu of each such illegal, invalid or unenforceable provision there shall be
added automatically as a part of this Agreement a provision as similar in terms
of such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
(17) Entire Agreement. This instrument embodies the entire
agreement between the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings, if any, relating to the
subject matter hereof
(18) Counterparts. This Agreement may be executed in one or more
counterparts, each of which for all purposes is to be deemed an original.
(19) Survival. All covenants, agreements, undertakings,
indemnities, representations and warranties made herein shall survive both the
execution and the termination hereof and shall not be affected by any
investigation made by any party.
(20) Further Assurances. Servicer shall furnish to Company at the
request of the Company such additional information concerning the Contracts as
Company may from time to time reasonably request in order to establish
compliance with the terms and conditions of this Agreement, and shall execute,
acknowledge and deliver, or cause to be executed, acknowledged or delivered,
such supplements hereto and such further instruments as may reasonably be
required or appropriate and permitted by law to further express the intention,
or to facilitate the performance of, this Agreement.
"COMPANY"
U.S. AUTOMOBILE ACCEPTANCE SNP-IV, INC.
By:
--------------------------------------
Its:
-------------------------------------
"SERVICER"
U.S. AUTOMOBILE ACCEPTANCE CORPORATION
By:
--------------------------------------
Its:
-------------------------------------
5
7
EXHIBIT TO SERVICING AGREEMENT
SERVICING CRITERIA
At all times during the term of the Servicing Agreement therein,
Servicer shall perform its duties in material accordance with the Servicing
Agreement, and observe the following covenants and criteria (referred to as the
"servicing criteria"):
I. SERVICING ACTIVITY REPORT
1. Servicer shall prepare, and deliver monthly to Company,
Servicing Activity Certificate (the "Certificate'), and the
president of Servicer shall certify as to the authenticity and
accuracy therein, that all Contacts managed by Servicer were
serviced in material accordance with the terms and conditions
of the Servicing Agreement, and that no Servicer Event of
Default as described in the Servicing Agreement has occurred
since the date of the last such Certificate.
2. The Certificate shall contain collection information on each
Contract since the date of the last such Certificate,
including adequately segregated information of all past due
accounts, repossessions, charge-offs, and extensions.
Supporting documents shall be made available to Company on a
demand basis, and such records shall be properly and safely
maintained.
3. The Certificate shall be delivered to Company on or before the
fifteenth day of the month following the month covered
thereunder.
II. COLLECTION POLICY
1. Contracts and all subcontract servicers will be issued advice
or instructions which will specifically request that all
payments be made to Company's Master Collection Account.
2. Servicer shall contact any Obligor on a past due Contract
within ten days after the payment due date for the purpose of
pursuing collection and shall adequately update all credit and
collection file records with respect to such activities.
3. Any material extensions, modifications, or acceptances of
partial payments by Obligors, and any related necessary
Contract amendments and/or default waivers by Servicer, shall
be approved by the chief credit officer or president of
Company or its assigns, and all necessary third party charges
and explanations relating thereto shall be documented.
III. FORECLOSURE/REPOSSESSION POLICY
1. The Servicer will take immediate appropriate action to enforce
recourse agreement on behalf of the Company. The Company will,
if necessary, pursue repossession action, subject to
compliance with all state and Federal laws relating thereto,
against the Financed Vehicle underlying any Contract whose
Obligor is (i) four payments past due in the case of biweekly
or semi-monthly Notes, (ii) two payments past due in the case
of monthly notes, and who have failed for (i) sixty
consecutive days to remit any sums against payment obligations
under the respective Contract for biweekly or semi-monthly
Contracts, and (ii) seventy-five days for monthly Contracts.
Nothing contained in this Section shall be construed to limit
Servicer from pursuing repossession or any other collection
technique, subject to related state and Federal laws, sooner
than the time contemplated in (i) and (ii) above if Servicer
in its discretion deems such activity to be prudent and in the
best interests of Servicer, Company, or their assigns.
2. For each chargeoff of any material unpaid amount from an
Obligor under any Contract, Servicer shall document the
reasons for such chargeoff, shall maintain all third-party
related documentation for such chargeoff and shall notify (and
document such notification) customary credit bureaus regarding
the Obligor's deficiency.
6